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Criminal Appeal No. 73 of 1984, heard on 8th October, 1985.

‑‑‑Ss. 302 & 307‑‑Accused committing murder of her husband‑ Occurrence taking place. during night‑‑Sole eye‑witness on seeing deceased being butchered, not raising any hue and cry but quietly leaving for her Dhari and informing her husband who too not raising any alarm on getting information of murder of his brother‑‑Husband of eye‑witness going to place of occurrence with his wife (eye‑witness) quietly and both of them raising hue and cry after expiry of deceased‑ Hue and cry of said witnesses only attracting one of their four sons who were sleeping at Dhari‑‑Conduct of sole eye‑witness not ringing true and found to be highly unnatural‑‑Eye‑witness though claiming to have seen occurrence from a close distance in moon light yet failing to give material details of occurrence‑‑Possibility of occurrence being un-witnessed, held, could not be ruled out‑‑Accused acquitted.

‑‑‑S. 307‑‑Accused making murderous assault on injured prosecution witness while he was sleeping at night‑‑Injured witness after receiving sharp‑edged injuries on his head raising alarm attracting witnesses who apprehended accused and snatched weapon of offence from her‑‑One of witnesses corroborating statement of injured witness‑‑Witness not related to injured witness and having no enmity with accused‑‑Charge under S. 307, P.P.C. against accused, held, proved.

‑‑‑S. 307‑‑Sentence‑‑Accused remaining in jail as under trial prisoner for period of two years and eight months‑‑Accused after conviction serving out sentence of 1‑3/4 years‑‑Sentence of imprisonment already undergone by accused, held, was sufficient to meet ends of justice‑ Accused being destitute as she could not engage a counsel in trial Court, sentence of fine also set aside.‑‑[Sentence].

Hassan Ahmad Khan Kanwar for Appellant.

Shah Nawaz for the State.

Date of hearing: 8th October, 1985.

Mst. Salamat Bibi (30), widow of Habib, caste Rajput, resident of village Teerath, Police Station Pattoki, District Kasur, was tried by the learned Additional Sessions Judge, Kasur, under sections 302 and 307, P.P.C., on the allegations that on 18th May, 1981 at 2 a.m., she committed the murder of her husband Habib and made murderous assault on Muhammad Latif P.W. By judgment, dated 18th January, 1984, she was convicted on the said charges and sentenced to imprisonment for life and a fine of Rs.2,000 under section 302,. P.P.C. and R.I. for two years and a fine of Rs.500 under section 307, P.P.C. Both the sentences were ordered to run concurrently. She has appealed.

2. The brief facts of the prosecution case are that on the night between 17/18th May, 1981, Abdullah complainant remained with his brother Habib deceased at his Dhari till mid‑night. Thereafter he left for his own Dhari situated nearby leaving Mst. Salamat Bibi with the deceased. At about 2 a.m. Mst. Raqia, wife of Abdullah complainant, woke up to ease herself. On the way she saw Mst. Salamat Bibi accused giving Toka blows to her husband Habib deceased on his neck, head and ear. She went back to her Dhari and informed her husband Abdullah complainant who accompanied her to the place where Habib deceased was lying murdered. Both of them raised alarm attracting their son Hanif P.W. to the spot. They sent him to the village to inform the other relatives about the occurrence.

The prosecution story goes that after committing the murder of Habib deceased, Mst. Salamat Bibi accused attacked his step‑brother Muhammad Latif in his house situated in the village Abadi at Fajar Azan time. She gave tier injuries with the Tokee on tits head. Muhammad Ali P.W. and Hanif son of Nanu (not produced) got attracted to his alarm and apprehended her.

Hanif son of Abdullah complainant returned to the place of murder and informed his parents that Mst. Salamt Bibi had also injured Muhammad Latif P.W., upon which Abdullah complainant left for the village. On reaching there, he saw Mst. Salamat Bibi in the custody of Muhammad Ali P.W. and Hanif son of Nanu (not produced).

The motive for the offence was that Mst. Salamat Bibi used to quarrel with the deceased very often. The deceased left her at the house of her parents many a time but every time she returned to his house. Muhammad Latif P.W. had been asking the deceased to divorce her. A day prior to the occurrence Habib deceased again left the accused in the house of her parents but she again came back to his house.

3. Abdullah complainant, Muhammad Ali P.W. and aforesaid Hanif son of Nanu (not produced) started for the police station, taking the accused with them. Muhammad Abbas, A.S.I., met them near canal bridge Teerath and Abdullah complainant reported the occurrence to him, vide his statement Exh. P.C. on the basis of which formal F.I.R. Exh. P.C./1 was recorded at Police Station Pattoki. Abdullah complainant and his companions produced Mct. Salamat Bibi and blood‑stained Tokee (P. 4) before the A.S.I. who took the Tokee into his possession and made it into a sealed parcel, vide memo. Exh. P.E. Thereafter he reached the spot. He prepared the injury‑statement Exh. P.F. and inquest‑report Exh P.G. of the dead body and despatched it to the mortuary for post‑mortem examination. He took into his possession cot (Exh. P. 5), Khes (Exh. P. 6) and two mattresses (Exh. P. 7/1‑2), all blood‑stained, vide memo. Exh. P.J. He arrested Mst. Salamat Bibi at the place of murder. Thereafter he went to the village and inspected the place where Muhammad Latif P. W. was injured. After the investigation the accused was challaned.

4. On 18th May, 1981, Dr. Muhammad Ashraf, Medical Officer, Rural Health Centre, Pattoki, conducted the autopsy on the dead body of Habib deceased and found the following injuries on it.

(1) Cut wound 5 c.m. long cutting through the whole thickness of right ear.

(2) Cut wound 5 c.m. x 1 c.m. on the right mastoid. Mastoid wound was cut through.

(3) Three cut wounds on the right side of neck. Measuring 6 c.m. x 2/3 c.m. x muscle deep to 11 c.m. x 1 c.m x muscle deep. Carodid and juglar blood vessels were cut through.;

(4) Four superficial cut wounds on the right side of neck measuring 8 c. m. each.

In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No. 3. The injuries were ante‑mortem and sufficient to cause death in the ordinary course of nature.

On the same day the same doctor examined Muhammad Latif P.W. and found the following injuries on his person:

(1) Cut wound 3 c.m. x c.m. x skin deep outside the left eye.

(2) Cut wound c.m. x 1/3 c.m. x skin deep on left upper eyelid. Eyes were swollen bulging out and pupils not reacting to light.

(3) Cut wound 5 c.m. x 1 c. m. x bone deep left side of chin.

(4) Cut wound 4 c.m. x c.m. x skin deep top of head.

(5) Cut wound 5 c.m. x c. m. x skin deep back of right hand.

(6) Cut wound 3 c.m. x c.m. x skin deep in front of left leg.

Injuries Nos. 2 and 3 were kept under observation and the rest were simple. All the injuries were fresh and caused by sharp weapon. According to the doctor, there was no final report about the injuries which were kept under observation.

5. In support of its case the prosecution examined thirteen witnesses in all. Mst. Raqia P.W. furnished the ocular account of the assault on Habib deceased. Muhammad Ali P.W. 4 and Latif P.W. 12 furnished ocular account of the second incident in which the latter was injured. The prosecution also relied on the evidence relating to motive and recovery of Tokee.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against her When asked whether she had anything else to say, she made the following statement:‑

"I am innocent. There was a dispute over a Watt between the deceased and Abdullah P.W. Latif P.W, also favoured Abdullah P.W. because the wife of Hanif P.W. the son of Abdullah complainant and wife of Latif P.W. are real sisters The dispute arose between them over a Watt on the night of occurrence where Latif, Abdullah and Hanif P.Ws. caused the murder of the deceased. I got no relative in the village nor I belong to the caste of deceased and P.W. For this reason I have been falsely implicated in this case."

No evidence was led in defence.

7. The learned trial Judge accepted the prosecution evidence and convicted and sentenced the appellant as mentioned above.

8. The learned counsel for the appellant contends that it was an un-witnessed occurrence and Mst. Salamat Bibi had been made scapegoat; there was no occasion for Mst. Raqia to have gone to the place of occurrence at 2 a.m. and in any case her conduct was so unnatural that It leads to the only conclusion that she was not present at the spot. He has also assailed the evidence of Muhammad All and Latif P.Ws. He submits that Latif suffered injuries while sleeping at the hands of some unknown culprit and the appellant has been falsely implicated due to enmity.

9. Mst. Raqia P.W. 10 is the only witness of the first incident in which Habib deceased was murdered. According to the F.I.R., the occurrence took place at about 2 a. m. Mat. Raqia stated that her husband Abdullah complainant came back from the Dhari of Habib deceased at mid‑night. An hour later she left towards the field to ease herself when she saw the accused giving Toka blows to the deceased. Thereafter she left towards her own Dhari and informed her husband who accompanied her to the place of murder. Habib deceased succumbed to his injuries when both of them reached the spot and then they raised hue and cry attracting their son Hanif P.W. 1 agree with the learned counsel that the conduct of Mst. Raqia was highly unnatural. It is very strange that on seeing the deceased being butchered she did not raise any hue and cry but quietly left for her Dhari and informed her husband who, too, did not raise any alarm on getting information that A his brother had been slaughtered by the accused. He, too, quietly accompanied his wife to the place of occurrence and when the deceased expired they raised hue and cry attracting only Hanif, their son. It is in the statement of Mst. Raqia that her three sons namely Asghar, Rashid and Ali Akbar were also sleeping at the Dhari from where Hanif had come to the spot. Strangely enough, she gave out that they did) not wake up on her hue and cry and kept sleeping till sunrise. The version narrated by her is highly unnatural and does not ring true. Had she seen the accused giving blows to the deceased she would have at once raised alarm attracting all the members of her family who were sleeping just at a stones throw distance. Again, her husband would not have taken more than a few minutes to reach the spot in her accompany. He could conveniently call his grown‑up sons who were sleeping nearby and followed the accused in order to apprehend her. She was a woman and was not armed with any firearm. By the time the complainant accompanied by his wife reached the place of murder, the accused would not have gone out of sight. Mst. Raqia claims to have seen the occurrence from a distance of 20 Karams in the moonlight. She could not tell if Habib deceased had raised cries after receiving the first Toka blow or had moved his neck right or left. The above facts and circumstances create a serious doubt about the presence of Mst. Raqia at the spot and there is every possibility that the murder had gone un witnessed and was disovered later on.

10. As far the assult on Muhammad Latif P.W., the prosecution version is supported by Muhammad Latif injured and Muhammad Ali P.W. Muhammad Latif P.W. stated that on receiving the Tokee blow on the head from Mat. Salamat Bibi he woke up and raised alarm attracting Muhammad Ali P.W. and given up P.W. Hanif, who apprehended her and snatched the Tokee from her. Muhammad Ali P.W has corroborated him. This witness is not related to Muhammad Latif P.W. and had no enmity with the appellant. The charge under section 307, P.P.C therefore, stands fully established.

11. For the foregoing reasons the conviction and sentence of the appellant under section 302, P.P.C. is set aside and she is acquitted of that charge. Her conviction under section 307, P.P.C. is, however, maintained. She was arrested on 18‑5‑1981 and was convicted on' 18‑1‑1984. Throughout this period she remained in jail as under‑trial prisoner. After her conviction she has served out for about 1‑3/4 years. In the circumstances, I feel that the sentence of imprisonment already undergone by her is sufficient to meet the ends of justice and I order accordingly. The appellant appears to be destitute as she could not engage a counsel in the trial Court. The sentence of fine is, therefore, set aside. She will be set at liberty forthwith if not required to be detained in any other case. The appeal stands disposed of accordingly.

H.A.K. Appeal partly accepted.

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